Kerala High Court
Puthukkodi Aboobacker vs Kerala State Wakf Board on 5 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC. NO.4766 OF 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
CRL.MC NO. 4766 OF 2017
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1992 OF
2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, TIRUR
NAME AND ADDRESS OF THE PETITIONERS/ACCUSED 2 TO 4:
1 PUTHUKKODI ABOOBACKER
AGED 54 YEARS, S/O.MUHAMMED, PUTHUKUDI
HOUSE,VADAKKUMPURAM PO, VALANCHERRY,
MALAPPURAM - 676 552
2 PALAKKAL SHEREEF
AGED 42 YEARS, S/O.MUHAMMED KUTTY,
PALAKKAL HOUSE,P.O.EDAYOOR NORTH,
VALANCHERRY, MALAPPURAM - 676 552
3 VALIYAPARAMBIL SASDAKATHULLA
AGED 62 YEARS, S/O.KUNJU MARAKKARA,
VALIYAPARAMBIL HOUSE, P.O.EDAYOOR NORTH,
VALANCHERRY, MALAPPURAM 676 552
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.AMRIN FATHIMA
SRI.K.M.FAISAL KALAMASSERY
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
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NAME AND ADDRESS OF THE RESPONDENTS:
1 KERALA STATE WAKF BOARD
REPRESENTED BY ITS AUTHORIZED OFFICER
SHRI RAHMATHULLA NALAKATH, DIVISIONAL
OFFICER, KERALA STATE WAKF BOARD OFFICE,
KSEB BHAVAN, MANJERI KOZHIKODE ROAD,
MALAPPURAM - 676 552
2 STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
VALANCHERRY POLICE STATION, MALAPPURAM
DISTRICT, THROUGH THE PUBLIC
PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM - 682 031
BY ADV.:
SRI. JAMSHEED HAFIZ, SC - R1
SRI.SANAL.P.RAJ, PP - R2
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 05.09.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.4766 of 2017
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Dated this the 05th day of September, 2024
ORDER
The petitioners are accused Nos. 2 to 4 in CC
No.1992/2015 on the file of Judicial First Class
Magistrate Court-1, Tirur. It is a prosecution
initiated by the 1st respondent under Section 52A of
the Waqf Act.
2. The main allegation against the
petitioners is that, they were persons in
administration of Waqf till April 2014 and the
Administrator of the Board had passed an order
dated 05.04.2014 appointing an interim Muttawalli
for the administration of the above Moonnakal
Waqf. It is submitted that, as per Section 32 of the
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Waqf Act, 1995, all the Auquaf in the state are
under the supervision and control of the
complainant Board. It is further submitted that, the
1st accused in the case had taken possession of the
Waqf property from the accused numbers 2 to 4,
who are the petitioners herein. It is submitted that,
accused Nos.2 to 4 are responsible for the
alienation of Waqf property from the year 2004
without obtaining prior sanction of the Board as
required under Section 56 of the Waqf Act.
Therefore, it is alleged that the accused are liable
to be prosecuted under Section 52A of the Waqf
Act. According to the petitioners, the prosecution is
unsustainable. Hence, this Criminal Miscellaneous
Case is filed.
3. Heard the learned counsel appearing for
the petitioners and the learned Standing Counsel
appearing for the 1st respondent. I also heard the
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learned Public Prosecutor.
4. The short point raised by the counsel
appearing for the petitioners is that, Section 52A of
the Waqf Act was inserted only in the year 2013 by
Act 2013. It is submitted that the alleged transfer
of the property by the petitioners to the 1 st accused
is in the year 2004. Therefore, as on the date of
the alleged act, even if it is accepted, there cannot
be any prosecution under Section 52A of the Waqf
Act because, as on that date Section 52A of the
Waqf Act was not in the statute book. I think, there
is force in the above argument.
5. The admitted case is that, the alienation
was in the year 2004. As on that date, Section 52A
of Waqf Act was not in the statute book. Therefore,
the prosecution can be initiated only if an act is
punishable as on the date of occurrence. In this
case, even if the entire allegations are accepted as
on the date of the alleged offence, the same is not
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an offence as on that date. Hence, criminal
prosecution is not possible.
6. The counsel for the petitioners also takes
me through paragraph No.2 of Annexure-A4 order
and submitted that the petitioners were not in
charge of the Waqf. That question need not be
considered. Since, as on the date of the alleged
act, Section 52A of the Waqf Act is not in the
statute book, the prosecution against the
petitioners are liable to be quashed.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the
petitioners in CC No.1992/2015 on the files of
Judicial First Class Magistrate Court-1, Tirur are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
nvj
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PETITIONER ANNEXURES
ANNEXURE A1 A TRUE COPY OF THE LEDGER EXTRACT OF
MOONAKKAL JUMA MASJID PERTAINING TO
THE DAILY DEPOSIT OF THE RENT FROM
05.02.2008 TO 09.07.2014 MADE BY
SHRI. MUHAMMED KUTTY PERINGODAN
ANNEXURE A2 A TRUE COPY OF THE ORDER DATED
30.07.2009 IN IA.NO. 96/2007 IN
OP.NO. 127/2007 OF THE KERALA STATE
WAKF BOARD
ANNEXURE A3 A TRUE COPY OF THE ORDER DATED
17.08.2010 OF THE CHIEF EXECUTIVE
OFFICER OF THE WAKF BOARD
ANNEXURE A4 A TRUE COPY OF THE ORDER DATED
05.04.2014 IN EP.NO. 6041 OF CR OF
THE KERALA STATE WAKF BOARD
ANNEXURE A5 TRUE COPIES OF THE RETURN/STATEMENT
OF ACCOUNTS APPROVED BY THE WAKF
BOARD OF THE YEARS 2008-2009 TO
2012-13
ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER
A5(a) ISSUED BY THE WAKF BOARD OF THE
YEARS 2008-2009 TO 2012-2013
ANNEXURE A6 A TRUE COPY OF THE COMPLAINT IN
CC.NO. 1992/2015 ON THE FILE OF THE
HON'BLE JFCM COURT I, TIRUR
RESPONDENTS EXHIBITS :NIL
//TRUE COPY//
PA TO JUDGE
